Vikramajit Sen, J.— This is an application under Order 1, Rule 10(2) read with Section 151 of the Code of Civil Procedure, 1908, filed by the Alipur Estates Residents' Welfare Association. This suit is for the passing of a decree declaring “that the plaintiff has the exclusive rights to use the lawns at the back of the Unit No. 12 situated on the ground floor at 10, Alipur Road, Civil Lines, Delhi upto boundary wall of the plot at the back between the boundary wall of the Unit No. 12 as per site plan attached for all times to come in any manner. Similarly the plaintiff has the exclusive right to use the available lawns, lawn which is by the side facing the main Alipur Road, Civil Lines, Delhi, upto the boundary wall of the main Alipur Road, Delhi and between the boundary of Unit No. 12 to the side facing main Alipur Road, Delhi as per plan attached and that the defendants have no right to trespass on these lawns in any manner whatsoever.
2. A perusal of the plaint discloses that the plaintiff had purchased the immovable property from defendant No. 1 in 10, Alipur Road, Delhi. Defendant Nos. 2 and 3 are also other owners of other properties/flats within the same plot. The plaintiff has asserted that the agreement to sell had been executed in his favour on 20th September, 1993. Two clauses of the Agreement to Sell extracted below are relevant and demolish the claim of the plaintiff that special and exclusive rights of user had been created in his favour. They also demolish the opposition to the application on behalf of the plaintiff.
“2(f). That all the buyers of different residential units shall have share in the land exactly in the proportion to the area of their residential unit/flat to the total covered area under the residential units within the Builder Site.
9(a). The Buyers shall have no exclusive claim, right or title whatsoever in respect of any open spaces, or any other space not specifically allotted to him, the uncovered portion of Builders Site of the plot on which the proposed building is to be constructed shall however, be available for common use of all dwelling units and shall be dealt with in accordance with the Delhi Apartment Ownership Act, 1986 or in accordance with any other law and mutual consent of all allottees of dwelling units. The Buyers shall not be entitled to claim a separate exclusive demarcation/partition/right or use to any part of the said area or to any area in the said plot not specifically allotted to him.”
3. It is the plaintiff's case that after the execution of the said agreement to sell, portions of which have been extracted above, a letter was exchanged between him and defendant No. 1 by which exclusive rights to use the lawn (land) at the back of his unit upto boundary wall of plot at the back between the boundary of the premises. The plaintiff's case rests almost entirely on the legal efficacy of this letter.
4. Although an interim injunction has been prayed for in an application under Order XXXIX filed with the plaint, which is, therefore, intrinsically in the nature of consequential relief, the suit has been filed for only a declaration simplicitor. Court fee of only Rs. 20/- (Rupees twenty only) has been affixed. However, whether the suit is maintainable in its present form is a matter which would be gone into on subsequent hearings. Prima facie, however, there does appear to be an obstacle in the maintainability of the suit and in its entertainment. When the case was heard for the first time, that is on 2nd February, 1995, the parties were directed to maintain status quo in the matter of possession over the suit property. On the next date Counsel for the defendant Nos. 2 and 3 pointed out that the plaintiff was altering the status quo and hence a Local Commissioner was appointed immediately. The report of the Local Commissioner dated 23rd February, 1995 substantiates these allegations against the plaintiff. The order directing maintenance of status quo is again repeated on 8th August, 1997 when a Local Commissioner was again appointed.
5. The application for impleadment had been filed by Alipur Estate Residents' Welfare Association. Its Secretary has sworn an affidavit to the effect that the applicant has been registered with the Registrar of Societies and that it is duly constituted in terms of the Delhi Apartment Ownership Act, 1986. Its memorandum and article of association have been filed and a perusal thereof supports the contention that it was incorporated exclusively for the protection of the property and the interests of the sundry owners. At the present stage I do not find it appropriate to return a finding on the applicability of the Delhi Apartment Ownership Act, or whether Rules have been framed under the statute, and also promulgated. The intention of the legislature is clear—where apartments have been constructed, there is common ownership over common areas, and the best watch-dog is the Association/Society constituted by the majority of the owners. This intendment must be implemented in its true spirit.
6. In deciding applications for impleadment, all that is to be seen is whether the applicant has a direct interest in the subject-matter in dispute. This proposition has been settled, almost half of century ago by the decision of the Supreme Court in Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886. There is yet another stream of legal opinion to the effect that the interest that should exist in favour of the applicant need not mandatorily be exclusively a legal interest, but may also include an equitable interest. In the present case I am satisfied that the applicant, in fact, has a direct interest in the subject-matter of the suit. It certainly has an equitable interest.
7. The plaintiff is one of many other owners of flats constructed on 10, Alipur Road, Civil Lines, Delhi. As per the agreement to sell executed in his favour he has an exclusive right over the residential Unit No. 12 (L.G). This is not an absolute right but is circumscribed by the clauses which have already been extracted above. It is obvious that the plaintiff as well as the Builder, defendant No. 1, who is now conveniently not defending the suit, were mindful of this limited interest. This could have been the only reason why a secret arrangement was subsequently arrived at between them. Prima facie, this private agreement seeks to take away, dilute and extinguish the right of other owners in the common areas of the said plot. Inasmuch as it attempts to fix exclusive rights over common areas in favour of the plaintiff, in defeat of the rights as contemplated and envisaged in the Delhi Apartment Ownership Act, 1986, other owners are directly interested in the relief claimed by the plaintiff. The said Association, the applicant before the Court, is a representative body comprising the various owners and a body contemplated in the Delhi Apartment Ownership Act. Prima facie it undisputedly has a direct interest in the relief claimed in the suit.
8. I am satisfied that it is necessary for the determination of the relief matter in dispute and to enable the Court factually and completely to adjudicate upon and settle all questions involved in the suit, to permit the applicant to join the proceedings. Learned Counsel for the applicant has correctly relied on the decision of this Court in Tulsi Devi v. Municipal Corporation of Delhi, 27 (1985) Delhi Law Times 408; and G.M.V Krishnamachari v. M.D Dhanalakshmi Ammal, AIR 1968 Madras 142, to press that the application be allowed. The application is accordingly allowed.
9. The applicant is impleaded as defendant No. 4. Amended Memo of Parties be filed accordingly.
Application allowed.